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Genetic discrimination unclear in provincial law

Peter Engelmann says it’s unfortunate that bill 164 never became law before the provincial Liberal government dissolved.

Canadians continue to need greater protection against discrimination on the basis of genetic characteristics, lawyers say.

Bill 164, which would have added discrimination on the basis of genetic characteristics to the list of prohibited grounds in Ontario’s Human Rights Code, passed second reading last fall. But it never became law before the Liberal government dissolved.

“I think it’s unfortunate,” says Peter Engelmann, a partner at Goldblatt Partners LLP in Ottawa, who practises labour and human rights law. “The purpose of the bill was to explicitly recognize the possibility of discrimination based on genetic testing.”

The bill said people could not be discriminated against because they refuse to undergo a genetic test, disclose the results of their genetic tests or authorize someone else to disclose these results.

If passed, the bill would have had a large impact on the insurance industry, says Nicole Simes, an employment lawyer at Mac­Leod Law Firm in Toronto.

Simes says she hasn’t seen many instances of discrimination on the basis of genetic characteristics in employment, but the proposed changes “would have really changed the human rights landscape when it comes to insurance.”

Bill 164 did not change the section of the Ontario Human Rights Code that allows insurance companies to provide different rates to applicants because of someone’s age, sex, marital status, family status or disability. This means, says Simes, that insurance companies would not be able to offer different rates to applicants because the results of a genetic test show they may develop a particular illness or disability.

“I don’t see it being a big issue for workplace law,” says Simes. “I think it’s a much broader human rights issue and how it applies to insurance.”

The bill would have made Ontario’s Human Rights Code more similar to the federal Human Rights Act. Genetic discrimination was added as a prohibited grounds in the Canadian Human Rights Act when the Genetic Non-Discrimination Act was passed in May 2017. The law says it is a criminal offence to ask someone to undergo a genetic test as a condition of providing them goods or services, entering into a contract with them or continuing a contract with them. The law says people cannot be required to disclose the results of a genetic test so they can receive goods, services or a contract. They also can’t be refused goods, services or a contract because they decide not to have a genetic test or to disclose the results of that test.

The act also changed the Canada Labour Code to protect federal employees and employees in federally regulated industries from discrimination on the basis of genetic characteristics.

People can be fined up to $1 million and face up to five years in prison for disobeying the law, the act says.

It’s important to change more than just human rights codes, says Engelmann, who has heard doctors and researchers tell about how people have refused genetic testing because they’re scared of being discriminated against on the basis of their test results.

“It’s woefully inadequate to simply have this in human rights legislation,” he says. “That’s not going to encourage people who are fearful about getting genetic testing and having to disclose it from getting that testing. It does provide some ability to get a remedy after the fact, but you’ve got to prosecute that on their own.”

The Genetic Non-Discrimination Actis “innovative,” says Bruce Ryder, a professor at Osgoode Hall Law School in Toronto, who specializes in human rights law.

The criminal prohibitions can result in more systemic changes, he says.

“We’re used to dealing with a complaints-driven human rights process where people who have experienced discrimination can file a complaint with the human rights commission or tribunal after they’ve experienced discrimination and they can ask for civil remedy,” he says. “It’s a case-by-case complaints-driven model that doesn’t necessarily accomplish systemic results.”

A complaints-based system “doesn’t really change the world more broadly,” he says. “It punishes individual wrongdoing. It seeks to redress the consequences of individual wrongdoing.”

The act has its critics, however. It has been referred to Quebec’s Court of Appeal, says Ryder. Quebec, he says, is concerned that the federal, criminal prohibitions in the bill infringe on provincial jurisdiction. The bill largely applies to employment and insurance, and these are mainly provincial areas, he says.

“It’s true that it can be addressed by the provinces, but it doesn’t have to be addressed only by the provinces,” says Ryder.

It’s unclear yet if legislation will again be introduced in Ontario to add genetic characteristics to provincial human rights law.

Stephanie Lewis, an employment lawyer at Nelligan O’Brien Payne LLP in Ottawa, says discrimination in human rights cases can be difficult to prove.

Lewis says she hopes the conversations started by bill 164 will encourage broader discussions about human rights.

Ontario lawyers raised $150,000 in 10 days to fund Pro Bono Ontario, after the non-profit said it would not have enough money to run three legal help centres next year, despite holding meetings with multiple regulators over the past few months.